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Duty To Notify


free_spirit_etc

Question

Is failure in the duty to notify part of the duty to assist stuff that is not a CUE?

Or can it be one of those procedural errors that can be argued as a CUE?

Thanks,

Free

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The Court was clear that it affirmed the CAVC’s decision holding that the veteran did not present a well grounded claim of CUE because he had not specified a factual or legal error in the 1972 rating decision that would have manifestly changed its outcome. Breach of the duty to assist is not the sort of error which should be considered in CUE analysis.

A cue is a collataral attack on the Law. Duty to assist is not the type of error.

A CUE is like this. A Veteran has a claimed condition that was shown in service and still has the condition diagnosed by VA or other medical sources. The VA denied the claim and based it on no evidence was in the record. The Vet can file a CUE claim ( If the claim is final)

The CUE was in this case failure of the VARO to apply the regulations of the Title 38 and also failure to consider all evidence of record. If th e RO had considered the evidence, the outcome would have been totally different.

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Thanks! I kind of sort of thought that duty to notify came under the duty to assit (since it is all part of the same regulation).

But I wanted to check it out.

With the VA - I have learned -- Assume NOTHING! Question EVERYTHING!

Free

The Court was clear that it affirmed the CAVC’s decision holding that the veteran did not present a well grounded claim of CUE because he had not specified a factual or legal error in the 1972 rating decision that would have manifestly changed its outcome. Breach of the duty to assist is not the sort of error which should be considered in CUE analysis.

A cue is a collataral attack on the Law. Duty to assist is not the type of error.

A CUE is like this. A Veteran has a claimed condition that was shown in service and still has the condition diagnosed by VA or other medical sources. The VA denied the claim and based it on no evidence was in the record. The Vet can file a CUE claim ( If the claim is final)

The CUE was in this case failure of the VARO to apply the regulations of the Title 38 and also failure to consider all evidence of record. If th e RO had considered the evidence, the outcome would have been totally different.

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  • HadIt.com Elder

Let's think Big for a moment, ( why not I may get to the end of this thing soon) I and the Va agree that I filed my first claim in 1978, but at that time the Va did not acquire the psychiatric records of the two psychiatrist that I saw in service and the Board Certified Psychiatrist that recommended my discharge, due to anxiety and depression and to stay in service, I would have had to take coded drugs and the all important letter from my commanding officer explaining my early discharge.

I receive a letter of not service connected in 1979. I did nothing, as I remember being told that in order to get that early discharge, I would have to give up all of my G.I benefits.

File again in 2002 and the pattern repeats itself. No psychiatric records secured by the Va. Denial and then awarded a pension, to which they knew that I would never be able to use. In the pension the Va. declared me 100% disabled to 1983. I do not receive SSD.

I secured the necessary Psychiatric medical records( in order to have any change of proving a claim) and see that I now am in the presumptive period.

In 2004, Va. acknowledges these are records new and material evidence, ( without them there has been no chance of having a case. )

If they should decide to end this claim now and award me benefits. Do they have to pay me back to when I first filed?

Or do I have to take it one step further and go into the courts.

You guys have all the knowledge and I have nothing, but questions,

Josephine

Edited by Josephine (see edit history)
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Josephine, You are up against complex system that relies upon medical evidence for evaluations. unfortunately, medicine is only the practice of medical science.

In your case the practice of Phsychiatry has no defined base for diagnosis and the VA has to go with what the Doctors opt to write down. Thus you have a changed diagnosis because there was no definate piece of medical evidence to relate to. This is not the same for Body systems like arthritis, heart disease, all can be diagnosed with medical testing and evidence relies on that test. The Global assessment function test was used in the other area and I think it is the hardest thing to assess. There is citeria for the tests but with all the testing involved, it comes down to a judgement call of the doctor. That is why your int he mess your in, The docs have made different diagnosis and the VA is only listening to the one it believes are accurate just because there are 2 Doctors that support the second diagnosis. These Doctors are probally best friends and golfing buddies and will always cover eash others back.

To settle the score, research a renound doctor in your area or close and do whatever it takes to get an opinion. You need one that is rock solid from a Doctor who is the (Funk). Top in the field. No one will go against it. That will put the evidence in equipose. Tell the doc what is going on. Call a local ssa attorney and ask the Attorney to give you the name of a Doctor who's opinion is concrete.

Still waiting for Award Letter and Retro: John

Edited by jstacy (see edit history)
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  • HadIt.com Elder
The Global assessment function test was used in the other area and I think it is the hardest thing to assess.

Jstacy,

Are we speaking of the GAf? The two psychiatrist gave me a 40 on that one.

Dr. Mxxxxx the PHD Psychologist at the Medical Center - Diagnosis Generalized anxiety not otherwise specified with depression. More likely than not.

Treating physician of 29 years - stating chronic anxiety with depression. Result of service

Dr. Cxxxxxx Military treating physician stating that he treated me for anxiety in service with librium and caffergot and referred me to the two military psychiatrist.

Dr. B and Dr. L the last two Psychiatrist - Axis 1 anxiety disorder not otherwise specified- Axis 2 borderline personality disorder - Axis 5 GAF -40. Anxiety with was not begun or worsen in service.

John,

Why do these two refuse to give the etiology of their opinion to the BVa. If they would do this, we could proceed.

They may be golf buddies, don't know, but they are going to have to answer to someone about the changing of the medical records and the unsubtaniated allegations to form their opinion? don't you agree with this.

To me that is the 64,000 dollar question?

Please do write me back.

If I receive a no from the BVA, I have 3 months to locate a Psychiatrist.

I sure am glad that your award letter is on the way and your large retro check.

Josephine

Edited by Josephine (see edit history)
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  • HadIt.com Elder

Dear friends,

When I received the C&P opinion by the two psychiatrist of the last examination that I had, I almost went into shock.

I have read and re-read the first C&P by Dr XXX of the Medical Center and there was not a thing left out of his examination. He stated the evidence as it is written.

The two psychiartrist changed all of my military and private medical records to form the opinion that they were seeking - to deny me.

As much as I have brought this information to the BVA with the proof of my own medical records to which they are looking at the same copy. How can they place any weight to what they are saying.

The two refuse to give the etiology of their decision to the BVA ?

Just because they are psychiarist, are they allowed to state. The veteran saw Dr. J Psychiartrist in consultation for headaches. This is the end of the statement!!

The true record states. The veteran was in consultion today with Dr. J with the nervousness, headaches and irratibility and is dis-satified with the working conditions and the living in the barracks with foul mouth people and crude. She feels that her values have been vitiated. There appears to be no personality conflicts and feels that with a change of working conditions, she may be able to continue to serve.

Two weeks later, she is in consulation with Dr. M with same symptoms. Reommends discharge. Board Certified Psychiatrist.

To me that is changing the medical evidence.

They also changed all of my private medical records.

I will not allow those two to state that my medical records state that I have three children, but I claim to only have two. That is an out and out lie.They can't say it, because they want too! They changed the medical records of Dr. G. S. It is in black and white!

They can't say that I take a razor blade and self inflict wounds to myself, but deny it. Darn it ! This is no more than a Lie! She did this by stating," she denies any self - inflicted injuires."so she says."

I will not allow them to say that I have an eating disoder, because I am a severe diabetic!

That I beat my husband and that I have a pattern of throwing food all over the floor and tearing up our home and kicking holes in the walls. I am coming from, Just because they say it and there is no medical information to back up what they are saying then how does that make it true?

I am coming from the stand point, that if I am to have a half way chance of winning, I need to dis-credit the two lying psychiatist.

Maybe no one cares what the body of the opinion of the C&P states only the conclusion of the C&P. Conclusion was concured by the body of the examination write - up.

Am I just too naive to see this? Please do tell me?

Josephine

Edited by Josephine (see edit history)
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Joesphine, Do you have a copy of the entire claims folder?

As I have said earlier, you need to get this thing in the courts hands. There you can be represented by an attorney.

You should develop a plan of attack for this issue. Get all the medical information needed as you ask for the court hearing. Obtain the IMO we discussed. Contact a good attorney. I believe that is your only avenue at this time.

I do agree with you. These Docs should state reasons and basis for diagnosis change.

Look this site up: http://www.wrongdiagnosis.com/ Search bith conditons and see how they relate.

John

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  • HadIt.com Elder

John,

I have copies of everything. I kept the copies of administrative records that the Va had never seen. For instance. The commanding officer writes do not let her see the reason for discharge. I know the reasons for the discharge and so does Dr. C. It was a pure medical discharge and one to which they have tried to cover up for years.

Had I not located the psychiatric records and the administrative records in 2004, The Va's little lie would continue.

John,

I can't get to the Court of Appeals until the AMC gives me an answer.

These Docs should state reasons and basis for diagnosis change.

This is what the BVA and the AMC want them to do and they refuse. They can't come up with any medical or otherwise reasons for writing what they did.

I have spend months proving them wrong and I am waiting for them to prove themselves right.

I have several lawyers that would love to have my claim, but not until the decision is rendered by the AMC.

I have been told that they are not allowed to represent me until I go into the Court of Appeals.

If I am wrong, please correct me?

Thanks bunches,

Josephine

Betty

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I'm not positive but failure to notify does seem to fall under the duty to assist. While failure of the duty to assist in itself is not grounds for CUE there are other considerations.

In my case, I had given the VA all necissary info of my injury to obtain the records. I was denied twice for the lack of these records and the first one left me with the impression they did not exsist. I did not appeal. I later learned, after finding them myself and reviewing my C-file, that the VA never once requested these records. Not even from me. I was never notified that the records were not available (because they were). VA CUE'd themselves and I was awarded to the origanal claim date.

If they had requested the records and could not get them it would not have been CUE. If I had not provided enough info for them to get them it would not have been CUE. It was CUE because they had made a decision without using all of the information available to them. The outcome of the decision (denial) would have been different if they had considered all of the information available. (The information was available, they made a decision without looking at it) Not because of a lack of Duty to Assist.

I hope I said that right.

Time

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  • HadIt.com Elder

I will take my case to the court of appeals with a lawyer, if they give me a negative.

My case, I told the Counselor at the Va of the Compentence Review Board Hearings with the Psychiatrist, but they never ask for all of those medical records, this was in 1978.

When I filed again in 2002, the Va did the same thing. I had no ideal that they didn't have them and I will never know if they didn't know if they existed or what the reasons were that the Va. Never ask for them.

I wrote to the Archives in 2004 and was sent all the psychiartric records and administrative records and turned in copies to the Va.

The BVA does acknowledge that these are records never acquired by the Va. before.

Where does that leave me, if I should win this claim?

I know that I have a fight ahead of me, but I do know that my Pet Test so far has shown no lung, liver or kidney cancer and went through the colon thing two weeks ago, this was fine and now had the biopsy of my thyroid. Just got back from the hospital.

Trust that this will be free of cancer also and then I am ready to fight them for many years.

Thanks.

Josephine

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Josephine,

You'll have to go through your c-file to see if you or anyone else had informed the VA that there had been treatment in service and by who (facility) and approximate dates. That is when the VA knew there was additional evidence to consider. If they didn't have this info,(all of it, facility, date, the purpose of treatment) it will not be CUE and you'll have a very hard time getting the EED on this issue. There may be other conciderations but not this one.

I think that's what your asking?

Time

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Thanks. That is some useful information. SO all information of record would be all the info that SHOULD have been of record...if you did your part and the VA did not do theirs --or notify you that they hadn't. This sounds like one of the cases I read when the VA had not obtained the claimants SMRs NOR notified him that they were not available.

Free

I'm not positive but failure to notify does seem to fall under the duty to assist. While failure of the duty to assist in itself is not grounds for CUE there are other considerations.

In my case, I had given the VA all necissary info of my injury to obtain the records. I was denied twice for the lack of these records and the first one left me with the impression they did not exsist. I did not appeal. I later learned, after finding them myself and reviewing my C-file, that the VA never once requested these records. Not even from me. I was never notified that the records were not available (because they were). VA CUE'd themselves and I was awarded to the origanal claim date.

If they had requested the records and could not get them it would not have been CUE. If I had not provided enough info for them to get them it would not have been CUE. It was CUE because they had made a decision without using all of the information available to them. The outcome of the decision (denial) would have been different if they had considered all of the information available. (The information was available, they made a decision without looking at it) Not because of a lack of Duty to Assist.

I hope I said that right.

Time

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  • HadIt.com Elder
You'll have to go through your c-file to see if you or anyone else had informed the VA that there had been treatment in service and by who (facility) and approximate dates. That is when the VA knew there was additional evidence to consider. If they didn't have this info,(all of it, facility, date, the purpose of treatment) it will not be CUE and you'll have a very hard time getting the EED on this issue. There may be other conciderations but not this one.

I think that's what your asking?

Time,

I told the counselor, but the code that they placed on my DD214, also told them of the records. When the Va. Placed the code 460, this would have told anyone in the Va. that there were letters from a Competency Review Board.

In 2002, I wrote a letter for them to secure those records, they never told me that they didn't have them, the counselor told me that was my complete file.

Not true!

To receive an early discharge, there is just no way that they didn't know, because you can not receive an early discharge without going before a board of psychiatrist.

The letter from the Commmanding Officer was on the Administrative side of my file.

I know that psychiatric records are stored separately, but when you read the letter from my commanding officer, he himself makes reference of the other records.

Without the Competency Review Board Papers, and consultations there would have not been an early discharge for me.

Opinions Welcome

Thanks,

Josephine

Edited by Josephine (see edit history)
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That is not as clear cut as my case was but it may win in court. When you get the SC rating I think you have enough to make a CUE claim worthwhile for EED. I don't think the RO will go for it but the court might.

Simply put, I think it's worth pursuing.

Time

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  • HadIt.com Elder

When I filed in 1978, I told the counselor to secure the competency review reports. He knew exactly what I was talking about.

Without these records, there was no reason for the Va. to give me the time of day and that is exactly what they did.

To repeat the same mistake in 2002 is inexcusable.

They didn't mind not giving me a C&P with either filing date.

If the courts make a ruling, I don't believe that the R.O can have any say over this matter.

I have never heard of the Regional Office overturning a ruling by any of the judges at the Court of Veterans Appeals.

Maybe I am wrong, just never heard of.

Josephine

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  • HadIt.com Elder

Time,

I didn't get a C&P either in 1978 or in 2002, only after the new and material evidence.

Thanks for your encouragement. I can't let them get to me now.

I have to fight to the end.

Always and thanks,

Josephine

Edited by Josephine (see edit history)
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